Opinion
No. 51.
January 13, 1936.
Appeal from the District Court of the United States for the Eastern District of New York.
On motion for rehearing.
Motion denied.
For former opinion, see 81 F.2d 56.
Osmond K. Fraenkel, of New York City (Harold H. Corbin and Osmond K. Fraenkel, both of New York City, of counsel), for appellant.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The criticism of the references in the opinion to Exhibit 145 (a balance sheet covering various Lehrenkrauss enterprises), made in the petition for rehearing, is well founded. We were misled because the exhibit not only was among those submitted to us, but was discussed in the government's brief as pertinent proof in support of its case, and counsel for the appellant filed no reply brief objecting to the use of such exhibit in the government's argument. The exhibit was admitted at the trial, and, after remaining in evidence as to all parties for some six days after it had been introduced, was finally excluded as to Fradkin only. The criticism that there was no proof that Exhibit 145 was used by Fradkin when he was negotiating for a loan from the Reconstruction Finance Corporation is likewise justified. Notwithstanding the mistake in giving weight to this exhibit in the opinion, it does not affect our general conclusion that there was sufficient evidence of Fradkin's guilt for submission to the jury. In short, Fradkin's connection with a fraudulent scheme to distribute the stock of a failing concern upon representations that were untrue was so intimate and so long continued that a jury was justified in determining that he either knew the representations were false or made them without knowing whether they were true or false, and was therefore guilty.
The motion for a rehearing is accordingly denied.